On October 15, the Supreme Court will hear oral arguments in Schuette v. Coalition to Defend Affirmative Action, a case that challenges a 2006 ballot initiative in Michigan that amended the state's constitution to prevent state universities from using race or sex as one of many equal factors in admissions. Although proponents of what was formerly known as Proposal 2 say this resulting affirmative action ban is consistent with the law, it appears to be specifically prohibited by the "political restructuring" doctrine of the Supreme Court.
Right-Wing Media Have Consistently Mischaracterized The Issues At The Center Of Schuette
The Wall Street Journal: Schuette Is An "Opportunity To Revisit" The Constitutionality Of Affirmative Action. In an editorial that incorrectly characterized Schuette as an affirmative action case rather than as a political restructuring one, James Taranto of the WSJ argued that the Court could use Schuette as an opportunity to strike down Grutter v. Bollinger, the 2003 decision that held that the University of Michigan Law School's "discriminatory admissions polic[y]" was constitutionally permissible:
It has been a decade since the U.S. Supreme Court upheld the University of Michigan's discriminatory admissions policies. By a 5-4 vote, the justices ruled in Grutter v. Bollinger that the Constitution permitted public universities to employ racial preferences in order to realize "the educational benefits that flow from a diverse student body." In an unusual footnote, Justice Sandra Day O'Connor suggested that the decision had an expiration date: "We expect that 25 years from now, the use of racial preferences will no longer be necessary."
Michigan voters didn't want to wait. In November 2006, by a 58% majority, they approved Proposal 2, a ballot measure prohibiting state and local government agencies from discriminating on the basis of race (or sex, color, ethnicity or national origin).
Schuette will soon ... provide an opportunity to revisit Grutter ... The University of Michigan's racial preferences would then come to an end, some 15 years ahead of schedule by Justice O'Connor's watch. [The Wall Street Journal, 3/28/13]
Breitbart.com: Schuette Will Decide Whether The Constitution Can "Require States To Consider Race." Breitbart.com also mischaracterized Schuette as a case about "race-issues" and framed the legal question as one of states' rights, rather than political participation:
[O]n Oct. 15, the Court will hear a major race-issues case. In Schuette v. Coalition to Defend Affirmative Action, the justices will consider whether the Fourteenth Amendment Equal Protection Clause forbids a state from amending its state constitution to say that government shall not consider a person's race when making decisions. Otherwise put, the Court will consider whether there is a constitutional right to require states to consider race. [Breitbart.com, 8/22/13]
Schuette Is Not About "Racial Preference," It's About Political Participation
SCOTUSblog: "Schuette Presents Affirmative Action Issues In An Entirely Different Context" Than Grutter. Stephen Wermiel, former Supreme Court reporter for The Wall Street Journal, points out that the question at issue in Schuette is not whether affirmative action is constitutional, but whether voters can rig the political process to place additional burdens on racial minorities that are not placed on other groups:
Schuette presents affirmative action issues in an entirely different context. The case involves a challenge to Proposal 2, an amendment to the Michigan Constitution, approved by voters in 2006, that banned affirmative action in the state. The statewide ban was challenged by a coalition of groups and individuals who support the continued use of affirmative action in Michigan. Other lawsuits were filed as well, but a federal district court largely upheld the ban enacted by the voters.
The appeal roiled the U.S. Court of Appeals for the Sixth Circuit, where a three-judge panel initially struck down the affirmative action ban by a two-to-one vote. Then the full Sixth Circuit agreed that Proposal 2 was unconstitutional, ruling eight to seven in an en banc decision that the voters had violated the Equal Protection Clause. The ruling by the full appeals court produced five separate dissenting opinions. The Supreme Court agreed to hear the appeal, and argument in the case will be held next fall.
The Sixth Circuit ruled in the Michigan case that because race-based affirmative action is still permitted by the Constitution, a decision by the voters of the state to prohibit this remedy distorts the political process and imposes a burden based on race that violates the Equal Protection Clause. The ruling turns not on the Court's long line of affirmative action cases but rather on a shorter set of precedents holding that individuals may not have their ability to participate in and influence the political process made more difficult because of their race. The Sixth Circuit found that amending the state constitution made it unconstitutionally difficult to advocate for the lawful remedy of affirmative action. [SCOTUSblog, 5/1/13]
The New York Times: Proposal 2 Makes It "Harder For Disfavored Minorities To Press For Change." Schuette is primarily concerned with how the state political process was restructured to ban affirmative action and selectively burden racial minorities' ability to petition the government for admissions reform, while allowing the wealthy and well-connected to lobby for their interests without similar interference:
[Schuette] concerns a voter initiative in Michigan that banned racial preferences in admissions to the state's public universities. In November, the United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled that the initiative, which amended the State Constitution, violated the federal Constitution's equal protection clause.
The appeals court majority said the problem with the law was that it restructured the state's political process by making it harder for disfavored minorities to press for change.
"A student seeking to have her family's alumni connections considered in her application to one of Michigan's esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school's governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state's Constitution," Judge R. Guy Cole Jr. wrote for the majority.
"The same cannot be said," Judge Cole added, "for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution -- a lengthy, expensive and arduous process -- to repeal the consequences of Proposal 2." [The New York Times, 3/25/13]
In Fact, Proposal 2 Does Not Promote Equal Treatment And Has Disproportionately Impacted Minority Enrollment
Bloomberg: Enrollment Of African-American Students "Is Down About 30 Percent" At State Schools As A Result Of The Affirmative Action Ban. Bloomberg reports that enrollment of African-American students has dropped precipitously at undergraduate and law schools in Michigan since Proposal 2 was passed in 2006:
In Michigan ... minority enrollment dropped after the ballot initiative, Proposal 2, was enacted. In 2006, the last full year in which race could be directly considered in admissions, blacks accounted for 6.4 percent of the freshman class, a number that excludes foreign students. Last year, black enrollment was 4.6 percent. Hispanic enrollment fell from 5.3 percent in 2006 to 3.9 percent in 2012.
At Michigan State University in East Lansing, black enrollment was already falling when Proposal 2 kicked in. Blacks represented 10.5 percent of the entering class in 1999, 8.8 percent in 2006 and 6.2 percent in 2012. Preliminary numbers for 2013 show blacks constitute 7.5 percent of freshmen.
The University of Michigan Law School enrolled 25 black students, or 6.8 percent of its first-year class, in 2006. The number was 14 black students, or 3.9 percent, in 2008, and the school hasn't topped 18 since then. Hispanic enrollment is about the same as it was in 2006.
Michigan Law School's admissions director, Sarah Zearfoss, sighs when asked in her office what steps she has taken to bring in more black students in the aftermath of Proposal 2.
"So many things, so many things, and -- spoiler alert -- none of it really has helped," Zearfoss said.
She pointed to a list of efforts to recruit more black applicants and persuade more admitted students to enroll. The school has enlisted black students, professors and alumni to help -- all to no avail. [Bloomberg, 9/24/13]